dissenting.
The government has conceded that Ab-dullah’s § 924(c) conviction is invalid after Bailey and Bousley. The majority asserts that the one-year time limit of April 24, 1997, set forth in AEDPA bars any relief. Because of the unique circumstances of this case, which include Abdullah’s timely filing of a pro se motion raising the Bailey issue, the district court’s disregard of Ab-dullah’s motion, the return of the motion to his attorney (apparently without notifying Abdullah), and the complete failure of his attorney to assert the issue because of apparent illness, I must respectfully dissent.
When this matter was first before the court in 1991, Attorney Timothy Stein represented Abdullah. Stein withdrew from the representation after we affirmed Ab-dullah’s conviction. The record indicates that on May 22, 1995, Attorney Raymond Takiff of Boca Raton, Florida, stated that he had been asked by Abdullah’s family to represent Abdullah in post-conviction proceedings. On July 21,1995, Takiff notified the district court that local counsel would be Donna Rohwer. On July 24, 1995, Tak-iff asked for an extension of time because he had a serious heart condition and had suffered heart failure in the first week of *688July. He stated that he would nonetheless be able to handle matters if he could have an additional four-week extension.
Bailey was decided in December, 1995. On March 5, 1996, Abdullah filed a pro se motion raising the Bailey issue present in his case. Neither Takiff, nor local counsel, Rohwer, ever raised the issue at any point in their representation of Abdullah. On July 29, 1996, Abdullah called the clerk of court’s office and was informed that he should file further proceedings through his attorney of record. On August 19, 1996, Judge Fenner, the new judge to whom the case had been assigned, entered an order instructing the clerk of court to return Abdullah’s motion to Takiff. From the record it does not appear that Abdullah was aware his motion would be disregarded. On September 10, 1996, the district court denied the § 2255 motion, without any mention of the Bailey issue. On June 18, 1997, Abdullah filed another pro se motion and memorandum in which he questioned why the Bailey issue had not been addressed by the court. On July 14, 1997, the district court entered another order that stated that Abdullah’s most recent pro se motion was being returned to Abdullah’s attorney without consideration of its contents. At oral argument, it was stated that Takiff had been ill and had passed away.
It appears from the record that (1) there was scant communication between Abdul-lah and Takiff, (2) Abdullah was unaware his pro se motion on the Bailey issue would be disregarded, and (3) Takiff and local counsel completely failed to assert the argument. While the majority states that Abdullah had a remedy in either retaining new counsel or terminating his attorney and raising the Bailey issue pro se, the circumstances of this case show that these supposed remedies were illusory. Given the lack of communication between the district court and Abdullah, as well as Abdullah and Takiff, Abdullah was not even aware that the district court was refusing to consider his petition on the Bailey issue. Although the district court has discretion to deny a litigant’s attempt to engage in hybrid representation, see Kemna, 207 F.3d at 1097, I believe it was an abuse of that discretion to reject Abdul-lah’s pro se filing where, as here, the filing raises what is conceded to be a meritorious constitutional challenge, and where, in proceedings of a different nature, counsel’s omission would clearly amount to a denial of constitutionally adequate representation. Clearly, Abdullah raised the Bailey issue in a timely manner and he should not be penalized for the breakdown in communications that occurred.